On court diversity, Justice Sonia Sotomayor sounds like Scalia

At a talk Friday at Brooklyn Law School, Justice Sonia Sotomayor said the court is disadvantaged by 'having (five) Catholics, three Jews, everyone from an Ivy League school.'

ByJennifer Peltz, Associated PressApril 9, 2016

U.S. Supreme Court Justice Sonia Sotomayor speaks in November 2015 at the University of Richmond School of Law in Richmond, Va. In a speech Friday at New York's Brooklyn Law School, Sotomayor says the nation's highest court needs more diversity in areas from personal background to professional experience.

New York — US Supreme Court Justice Sonia Sotomayor said the nation's highest court needs more diversity of personal backgrounds and professional experience, speaking as a vacancy has refocused attention on the court's makeup.

During a talk Friday at Brooklyn Law School, Sotomayor didn't mention the nomination of Judge Merrick Garland, who is highly respected but wouldn't add racial, religious, or educational diversity to the high court. But Sotomayor, the court's first Latina justice, said "it is important that we have greater diversity on the Supreme Court" and in the legal profession.

"I, for one, do think there is a disadvantage from having (five) Catholics, three Jews, everyone from an Ivy League school," several justices from New York City and no one who practiced criminal defense law outside white-collar settings, Sotomayor told the law school audience.

Sotomayor and some of her colleagues have said before that the high court could benefit from more diversity. In fact, the recently departed conservative Justice Antonin Scalia made a similar point in his dissent to last year's Supreme Court ruling supporting same-sex marriage, notes The Christian Science Monitor.

"To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine," Scalia wrote, "is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation."

All of the justices went to Harvard and Yale Law School, he wrote, and eight of them grew up on either the East or West Coast, with four coming from New York City alone.

On even deeper examination, there’s even less diversity in some measures. All but one of the justices are former federal appeals court judges (Elena Kagan had served as dean of Harvard Law School and US solicitor general before her appointment, and she took some heat for it during the confirmation process). None has ever served on a state court or run for public office. The Roberts court is the first in US history without a Protestant. Three are Jewish; six justices, including Scalia, are Catholic.

“Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination,” he wrote in the dissent.

But Sotomayor's remarks Friday come in the fraught context of a nomination in unusual limbo.

Since Scalia's January death left Democratic President Barack Obama with the chance to fill a seat that could shift the court's ideological balance, Senate Republicans have said they will not consider confirming anyone named before the November presidential election.

Some liberal groups hoped Obama, who had previously tapped Sotomayor and Justice Elena Kagan, would nominate another woman or minority. Instead, he tapped Merrick Garland, the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit. Garland, 63, is a white, Jewish former prosecutor with an Ivy League background and a career in the capital — and a centrist reputation the White House may have hoped would put pressure on Republicans to consider him.

Sotomayor didn't mention Garland or touch on the nomination. But in answer to diversity-related questions submitted by Brooklyn Law students, she said she felt that varied backgrounds help justices "educate each other to be better listeners and better thinkers because we understand things from experience."

She recounted a 2009 oral argument in which Justice Ruth Bader Ginsburg suggested that her then all-male colleagues had wrongly equated a strip-search of a middle-school girl to changing for gym class in a locker room because they had "never been a 13-year-old girl." The court ultimately ruled, 8-1, that the search was unconstitutional.

Sotomayor stressed that decisions depend on the law, not personal viewpoints or experiences.

"But a different perspective can permit you to more fully understand the arguments that are before you and help you articulate your position in a way that everyone will understand," she said.